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Role of the Ministry of Labour
On November 27, 2017, the Fair Workplaces, Better Jobs Act became law, resulting in a number of changes to the Employment Standards Act (ESA). This Guide will be updated as the new rules come into force. Read a complete summary of the changes to the ESA.
The Ministry of Labour administers the Employment Standards Act, 2000 (ESA) and its regulations by:
- providing compliance support
- conducting proactive inspections of payroll records and workplace practices to ensure the ESA is being followed
- investigating and resolving complaints
- enforcing the ESA and its regulations
The ministry offers a wide range of publications and services to help employees and employers understand their rights and comply with their obligations. These include an employment standards poster, which employers are required to post in their workplaces; a catalogue of fact sheets and information sheets covering a variety of topics; and a suite of interactive online tools and calculators to assist employers and employees to understand provisions of the ESA, such as the termination tool, the public holiday pay calculator and the severance tool.
The ministry is also involved in outreach initiatives such as information seminars and workshops for employer groups, employment counsellors, and professional associations.
Employment standards officers conduct proactive inspections of payroll and other records, including a review of employment practices. An officer performing a proactive inspection will usually visit the employer’s business location. Officers may notify the employer in writing before the inspection, but are not required to. A notice may set out a list of records and other documents the employer must provide during the inspection. The employer is required to produce the records requested and must answer questions that the officer thinks may be relevant.
An officer is able to take away records or other information for review and copying. The employer is welcome to ask questions, and to request further information.
Employees are encouraged to contact their employer or former employer (or the client of a temporary help agency, if applicable) about the employment standards right(s) they believe have been violated and the amount of money they are owed before filing a claim. Issues can often be resolved quickly with this approach. However, there might be a good reason for an employee to not contact their employer (e.g. If the employee is afraid to contact the employer or he or she is a young employee).
Employees have an opportunity to tell the ministry on the claim form why they did not contact their employer, or that they have already contacted their employer.
If the parties are unable to resolve the issue on their own, and if the employee has provided all the required information on the claim form, the matter is assigned to an employment standards officer for investigation.
When a claim is assigned for investigation, the employment standards officer may conduct his or her investigation by telephone, through written correspondence, by visiting the employer’s premises or by requiring the employee and/or the employer to attend a meeting. During an investigation, both parties have the opportunity to present the facts and arguments they believe are important to their case. If a claim has been submitted against the client of a temporary help agency regarding a possible reprisal or unpaid wages, employment standards officers have the same powers of investigation with respect to the client as they do for an employer. The officer will make a decision based on the best available evidence which may include employer records, client records, employee records, and interviews.
During an investigation, there are strict timeframes that apply to requests for documents from employees, employers and clients of temporary help agencies. If the information is not provided in a timely manner, a decision may be made without consideration of those materials. Similarly, if both parties were required to attend a meeting but one did not show up, the employment standards officer may make a decision based solely on the evidence provided to the officer before the meeting and the evidence provided by the other party at the meeting.
After investigating a claim, the employment standards officer makes a decision about whether the employer has or has not followed the ESA. If the officer finds that the employer has complied with the ESA:
- the employee is notified in writing of this decision, and can apply for a review within 30 days.
If the officer finds that the employer has not complied with the ESA:
- the employer or the client of a temporary help agency may resolve the issue by voluntarily complying with the officer’s decision (i.e., by paying money that is owing to an employee or employees, or by adopting new, or changing existing, workplace practices).
- the officer may issue an order against the employer. (For more information, see “Enforcement”, below.)
- the officer may require an employer to post a notice containing specific information about administration or enforcement of the ESA, and/or a copy of the report or part of the report with the officer’s findings.
An employee and employer or the client of a temporary help agency can enter into a settlement to resolve their dispute. A settlement is an agreement made between an employee and his or her employer that will resolve the claim. The ESA allows this option in certain circumstances after a claim has been filed.
In some cases, the investigation of a claim could take months; particularly where there are multiple complex issues that require the review of a large number of documents and records. A quick resolution to a claim may be important to some claimants and employers. If the employer and the employee are willing to work together to find a mutually acceptable solution, they may try to settle a claim.
If a settlement is made, the employee and his or her employer will have to inform the ministry in writing of the terms of the settlement. If the employee and employer do what they agreed to under the settlement, the claim is considered to be withdrawn and the investigation will come to an end.
Claimants and employers are not required to resolve a claim by entering into a settlement.
If the employer or the claimant fails to do what they said they would do in the settlement, the employer or the claimant can call the Employment Standards Officer that was assigned to the claim. The name and telephone number of the Employment Standards Officer can be found on the letter that he or she sent after the settlement was entered into. The Employment Standards Officer will determine whether to resume the investigation of the claim.
If a claimant believes that the employer used fraud (lied to get the claimant to agree to the settlement) or coercion (used force or intimidation to get the claimant to agree to the settlement), the claimant can apply to the Ontario Labour Relations Board to have the settlement set aside.
If an employer is unwilling or unable to comply with an employment standards officer’s decision, the officer can issue an order to pay wages, a compliance order, a ticket, a notice of contravention or, for certain violations, an order to reinstate and/or compensate an employee.
These orders, tickets, and notice of contraventions are not mutually exclusive, and an officer can issue one or more of these orders and/or a notice of contravention in the course of an investigation or inspection.
In the case of a reprisal by a client of a temporary help agency, an officer can issue an order to reinstate in the assignment and/or compensate an employee for any loss incurred as a result of the contravention.
Employers and clients of temporary help agencies have the right to appeal an officer’s order or a notice of contravention by making an application for review to the Ontario Labour Relations Board. The employer also has a number of options if an officer has issued a ticket.
Employees who have filed a claim or for whom an order has been issued have the right to appeal an order to pay wages or an order for compensation/reinstatement issued against their employer or against a client of a temporary help agency.
Order to pay wages
An order to pay wages is issued and served on an employer or a client of a temporary help agency for wages or tips and other gratuities owed to an employee or employees when an employer has refused to pay money found owing (except when there has been a bankruptcy).
The employer or the client of a temporary help agency must comply with the order according to its terms or appeal the order within 30 days of the date the order is served. The order also requires the employer to pay an administrative cost of 10 per cent of the amount of the order, or $100.00, whichever is greater.
A $10,000 cap applies when an employment standards officer is issuing an order in respect of a single employee for any wages that came due prior to February 20, 2015. Because of changes made to the ESA that came into force on February 20, 2015, an order issued by an employment standards officer for wages that came due on or after that date is not subject to any cap.
An officer can issue a compliance order if the officer finds that the employer has contravened a provision of the ESA. The officer can order an employer or other person to stop contravening the provision, and to take certain steps or stop taking certain steps in order to comply with it. The order must also specify a date by which the employer or other person must comply with the order. These orders cannot require payment of wages or compensation.
Example of a compliance order in addition to an order to pay wages
While investigating Lisa’s claim for overtime pay, the employment standards officer discovered the employer was not giving the five employees proper meal breaks of at least 30 minutes after every five consecutive hours of work. Also, the employer had not posted the "What you should know about the Ontario Employment Standards Act" poster as required under the ESA.
In addition to the order to pay wages, the officer issued and served on the employer a compliance order directing it to: ensure that employees would receive their proper meal breaks; post the material required by the ESA; and post a copy of the compliance order in a conspicuous place at the workplace for six months.
An offence notice (commonly called a “ticket”) can be issued under Part I of the Provincial Offences Act. Typically, tickets are issued for less serious ESA violations. Tickets will be issued to the employer responsible for the offence. Ticketable offences fall into three categories:
- Administrative and enforcement offences (e.g. failure to retain records)
- Contraventions of wage-based employment standards (e.g. failure to pay overtime pay)
- Contraventions of non-wage-based employment standards (e.g. requiring employees to work hours in excess of daily or weekly limits)
Tickets carry set fines of $295, with a victim fine surcharge added to each set fine plus court costs. If issued a ticket, an employer can choose to pay the fine or appear in a provincial court to dispute the charge set out in the ticket.
Notice of contravention
Employment standards officers have the power to issue notices of contravention with prescribed penalties when they believe someone has contravened a provision of the ESA. The penalty amount (payable to the "Minister of Finance") must either be paid or appealed within 30 days of the date the notice was served.
If an employer has contravened the poster requirements of the ESA or has failed to keep proper payroll records or to keep these records readily available for inspection by an employment standards officer, an officer can serve a notice of contravention with the following prescribed penalties:
- $250.00 for a first contravention;
- $500.00 for a second contravention in a three-year period;
- $1,000.00 for a third contravention in a three-year period.
If an employer is found in contravention of any other provision of the ESA, the penalties prescribed are:
- $250.00 for a first contravention multiplied by the number of employees affected;
- $500.00 for a second contravention in a three-year period multiplied by the number of employees affected;
- $1,000.00 for a third contravention in a three-year period multiplied by the number of employees affected.
Example of when there are further violations
Six weeks after serving the compliance order on Lisa’s former employer, the officer visited the employer and conducted a further audit. The officer found that the employer was now paying overtime to all employees and had posted a copy of the compliance order. However, the employer had not posted a copy of the ESA poster and had not ensured that its five employees received proper meal breaks.
As a result, the officer issued and served a notice of contravention on the employer. This set out the officer’s belief that the employer had failed to post the ESA poster ($250.00 penalty) and had failed to give proper meal breaks to five employees (five times the $250.00 penalty = $1,250.00), for a total of $1,500.00 in penalties.
The officer also informed the employer that further violations could result in future notices of contravention being issued and/or prosecution by the Ministry.
Order to compensate and/or reinstate
In the case of some violations, an officer can make an order requiring an employer to reinstate or compensate an employee–or both. The violations in question relate to the following provisions of the ESA:
- pregnancy, parental, personal emergency, family caregiver, family medical, critical illness, organ donor, reservist, and crime-related child death or disappearance leave;
- lie detectors;
- the right to refuse to work on a Sunday for certain retail employees;
- reprisal against an employee for exercising his or her rights under the ESA.
There is no cap on the amount of a compensation order that can be issued by an employment standards officer. The officer can order compensation for any reasonable, foreseeable loss the employee may have incurred.
Review (appeal) of an officer’s decision
Reviews are conducted by the Ontario Labour Relations Board, an independent, quasi-judicial tribunal. If employees, employers or clients of temporary help agencies are not satisfied with an officer’s decision, they may have the right to apply for a review (appeal). They must complete an Application for Review, setting out the facts and reasons for the application within 30 days of service of the order or notice
To obtain an Application for Review form contact:
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
The Application for Review form must be submitted to:
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
An employee who files a claim can appeal an officer’s refusal to issue an Order to Pay Wages, an Order to Pay Fees, an Order to Pay Compensation and/or Reinstate or a Compliance Order.
An employee for whom an order has been issued (whether or not he or she filed a claim) can appeal the amount of an officer’s Order to Pay Wages or an officer’s Order to Pay Compensation and/or Reinstate.
For employees, the Application for Review must be submitted within 30 days of the date the letter advising the employee that an order has been issued against the employer or client of a temporary help agency, or letter advising that the officer has refused to issue an order has been served on the employee.
For employers and clients of temporary help agencies, the Application for Review must be submitted within 30 days of the date of being served with an order or notice.
Employers and clients of temporary help agencies can apply for a review of an Order to Pay Wages (the employer and client of a temporary help agency must pay the full amount of the order plus the administrative fees to the Director of Employment Standards in trust); an Order to Pay Fees (and client of a temporary help agency must pay the full amount of the order plus the administrative costs to the Director of Employment Standards in trust); a Compliance Order (these orders do not require payment of wages or compensation); a Notice of Contravention (the employer or client of a temporary help agency does not have to pay the amount of the penalty before the review hearing can proceed)
In addition, employers and clients of temporary help agencies can apply for a review of an Order to Pay Compensation and/or Reinstate an employee. The employer or the client of a temporary help agency must pay the lesser of the amount owing under the order or $10,000, whichever is lesser, to the Director of Employment Standards in trust.
Offence notice (“ticket”)
Employers who receive a ticket must, within 15 days of the receipt of the ticket, choose one of the following:
- Plead guilty by paying the amount owing on the ticket.
- Plead guilty with an explanation to a Justice of the Peace. The employer must bring their ticket to the Provincial Offences Court to provide explanations as to why the amount or time of payment of the ticket should be reduced.
- Plead not guilty and fill out the notice of intention to appear in court. The court will schedule a trial.
An employer who does not elect one of the above options within 15 days of receiving the ticket, will be deemed not to dispute the charge.
Delivering materials to the director of employment standards
The copy of the Application for Review Form and other documents:
In order of preference:
- email to appforreview.directorofES@ontario.ca or fax to 1-855-251-5025
- regular mail
- courier or hand delivery
Payments must be made to the "Director of Employment Standards in trust" within 30 days of service of the order. It is to be made by cheque, money order or letter of credit. A letter of credit must be in a form that is acceptable to the Director of Employment Standards. While the Director of Employment Standards may establish other criteria, generally speaking the Director will find a letter of credit to be acceptable if:
- It is irrevocable;
- It contains a condition providing for its automatic renewal following the expiry date of the letter of credit;
- It contains no other conditions, i.e., conditions other than the automatic renewal condition;
- It permits "partial drawings", i.e., the Director can demand and receive payment of less than the entire amount specified in the letter of credit. (This is in case the application for review of the order is partially successful and the Ontario Labour Relations Board reduces the amount of the order.);
- It is issued by a bank or similar financial institution having an office in Ontario.
The payment is to be forwarded to:
Address for mail, courier or hand delivery:
Director of Employment Standards
Employment Practices Branch
Ministry of Labour
400 University Avenue
Toronto, ON M7A 1T7
The ministry will issue a proof of payment to the employer or client of a temporary help agency, and will hold the payment in trust.
For more information on letters of credit, please refer to the Ministry of Labour website. There is a link to "Letter of Credit" information under the "Topics" menu.
The review process
When a request for a review is received, an officer of the Ontario Labour Relations Board (the "Board") will sometimes schedule a mediation meeting with the parties. No mediation meeting takes place in the case of a notice of contravention. If the matter is settled at this meeting, the minutes of the settlement are drawn up and signed off by the parties.
If the matter is not settled, or there has not been an attempt at mediation, a hearing is scheduled. The parties have a right to appear at the hearing, present their information in full and explain why they think the employment standards officer was right or wrong.
The Board can amend, overturn or uphold the employment standards officer’s order or notice of contravention. The Board can also issue a new order.
After reviewing an employment standards officer’s refusal to issue an order, the Board may issue an order or uphold the officer’s refusal.
The Board’s decisions are final and binding, although an employee, employer, or client of a temporary help agency may apply to Divisional Court for Judicial Review.
If an employer or client of a temporary help agency does not apply for a review within 30 days of the date the order or Notice of Contravention was served, the order or notice is final and binding. If the employer or client of a temporary help agency has not paid the required amount, the Director of Employment Standards forwards the order or notice to a collector.
The Director may authorize the collector to collect a reasonable fee and/or costs from the employer or client of a temporary help agency. The fees and costs are added to the amount of the order.
Prosecution (other than by way of a ticket)
An employer or other person who is believed to have committed an offence under the ESA can be prosecuted under Part III of the Provincial Offences Act. It is an offence for an employer or other person to:
- contravene the ESA or regulations
- make or keep false records or other documents that must be kept under the ESA
- provide false or misleading information under the ESA
- fail to comply with an order, direction or other requirement under the ESA or regulations
If convicted, the employer or other person could be subject to a fine or a term of imprisonment or both. Individuals, if convicted of an offence, can be fined up to $50,000, imprisoned for up to 12 months, or both.
A corporation can be fined up to $100,000 for a first conviction. If the corporation has already been convicted of an offence under the ESA, it can be fined up to $250,000 for a second conviction. For a third or subsequent conviction, the corporation can be fined up to $500,000.
In addition to the imposing a fine or term of imprisonment, a court could also order the convicted person (including a corporation) to take whatever action is necessary to remedy the violation, including paying wages and compensating and/or reinstating an employee.